Eighty percent of the 324 respondents to our recent poll said no, an employer can't ask a job applicant or employee about their religion. This cautious majority is right-for the most part. Nineteen percent said it depends. We hope they didn't learn the hard way. The remaining three responses-well, we hope they know what they're doing before they test it out. But how do you know when you can inquire about an employee or job applicant's religion?

Binding accommodation

In what circumstances might it be acceptable to ask an employee about her or his religious beliefs?

The Canadian Human Rights Act says:

7. It is a discriminatory practice, directly or indirectly:

(a) To refuse to employ or continue to employ any individual, or

(b) In the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination…

15.(1) It is not a discriminatory practice if:

(a) Any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement…

(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement…it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost…

25. “employment” includes a contractual relationship with an individual for the provision of services personally by the individual.

While each jurisdiction's human rights law says it differently, most say essentially the same thing.

An employer may ask an employee about her or his beliefs if there is a bona fide occupational requirement that the employee or applicant follow a certain religion or way of life-or, in the case of clothing, for example, that the person not follow a certain religion's rules.

An employer may seek such information from an employee or job applicant if the person requests religious accommodation, for instance to observe the religion's holidays or way of dress.

So, what's a bona fide religious occupational requirement?

In short, if it will cause your organization undue hardship to employ someone whose religious beliefs or actions do not match your organization's mission or principles, you probably have a bona fide religious occupational requirement. But what does undue hardship mean in this context?

"The right to equal treatment in employment is not infringed where a religious social institution or organization that is primarily engaged in serving the interests of persons identified by their creed employs only, or gives preference in employment to, persons similarly identified, if the qualification is a reasonable and bona fide qualification because of the nature of the employment.”

The 2013 case of Christian Horizons sheds some light on the question of bona fide religious requirements:

"When a support worker at Christian Horizons, an organization that runs homes for persons with developmental disabilities, entered a same-sex relationship, the organization found the worker had breached its “Lifestyle and Morality Statement,” which prohibited homosexual relationships. The organization terminated the employee on that ground.

"The Divisional Court found that the organization had not assessed whether it was truly necessary for workers to refrain from same-sex relationships in order to perform their duties.”

The interesting result of this case was that Christian Horizons is reassessing whether it's truly necessary that the organization's support workers act according to the Christian principles outlined in the Lifestyle and Morality Statement. If front-line workers are not under such an obligation, it may be difficult to justify other bona fide religious occupational requirements below management.

In other words, for applicable employers-and depending on the organization's specific mission-it may be appropriate to ask senior employees or applicants for senior positions about their religious beliefs, but probably not the custodian or the receptionist, and maybe not the IT or marketing departments.

But what about…

So say your organization has a bona fide occupational requirement that employees not cover their heads, and a woman shows up for an interview in a headscarf. Can you ask about the applicant's religion then?

This situation arose recently in the United States. Michele Glassford writes that the employer decided not to hire the applicant because it assumed she wore her headscarf for religious reasons and would want to wear it at work. The thing is, the employer didn't actually inquire about it, arguing that it didn't have the right to ask the woman whether her religion required her to wear a headscarf in public. The applicant subsequently claimed that the employer discriminated against her based on religion and failed to accommodate her religious observance.

How can an employer accommodate an applicant's needs without the person explicitly stating them or the employer inquiring?

The case has yet to be decided-and it's not certain how the decision will affect Canadian discrimination cases, but the Supreme Court justices have offered some insight into how an employer might “prompt a discussion about accommodation.”

In this case, an employer might ask the applicant or employee “Can you fulfil the bona fide requirements of the job, be they physical, dress, attendance or any other?” Alternatively, the employer could “simply present the dress code policy to the candidate and inquire if the candidate had any problems with it.”

"Inquiries about specific religious holidays observed by the applicant, customs observed, religious dress, etc.; requiring applicants to provide recommendations from a church or religious leader.”

Instead, you should ask questions about the candidate's “availability for shift work, travel, etc.”

In conclusion

Whether or not you have a bona fide occupational requirement to hire people based on their religion-and most do not-employers must be careful with their interview questions, and avoid making hiring decisions based on unnecessary distinctions. It will be difficult to fault an employer that is clear about its intentions, avoids assumptions and treats all candidates with respect throughout the application and interview process.

In assessing if a rule is a bona fide occupation requirement, a Commission or Tribunal will normally consider the following criteria for each characteristic based on the Meiorin test, and you should to (source Alberta Human Rights Commission).

Rational connection to the performance of the job

What is the purpose of the policy or standard-safety, efficiency, other? Evidence may include public statements or documents and internal documents that provide information about the work.

What are the objective requirements of the job? Evidence may involve identifying the jobs to which the policy or standard applies and identifying the duties involved in these jobs.

Is there a rational connection between the general purpose of the policy or standard and the objective requirements of the job?

Honest and good faith belief that the standard is necessary

What are the circumstances surrounding the adoption of the policy or standard?

When was the policy or standard created, by whom, and why?

What other considerations were included in the development of the policy or standard?

Reasonable necessity

Was the standard or policy based on assumptions about a particular group?

Is there evidence that the standard or policy treats a particular group more harshly than another without apparent justification?

Were alternate approaches considered before the standard or policy was adopted?

Is there any evidence the policy or standard was designed to minimize the burden on those required to comply?

Is there accommodation to the point of undue hardship?

Is it necessary for all employees to meet the standard or comply with the policy for the employer to accomplish its legitimate purpose?

Is there any evidence that the legitimate purpose could be accomplished through a less discriminatory approach?

The test is applied on an individual or case-by-case basis. An employer who meets the Meiorin test in one instance may not necessarily be able to rely on the same information in similar future situations.

This article is published on HRinfodesk, an online publication and database of payroll and employment law news, compliance and case commentaries for every jurisdiction in Canada, published by First Reference.

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